Union Pacific cites an email from Bill Nisbet to James Rogers, in which he states: It is unclear whether the parties are referring to the Federal or State agency. Winecup intends to introduce Godwin's opinion as evidence of what size culverts should be used based on the industry standard. The determination of whether evidence is relevant to an action or issue is expansive and inclusive. ; ECF No. . 139. (Id.) Accordingly, the Union Pacific's fourth motion in limine to pre-admit exhibits for use in juror binders (ECF No. 2016)) (emphasis provided by Snapp). See NAC 535.140. While Winecup clearly could not have disclosed any of these experts at the initial October 2018 disclosure date (as none had yet to be deposed), Winecup could have disclosed that it intended to call Holt and Quaglieri in its November 2018 rebuttal disclosure, and could have disclosed Opperman well before May 13, 2020. Previously, Joe was a Student at King Ranch and also held pos itions at Roaring Springs Ranch Club. Id. 3:17-cv-00477-LRH-CLB, 2020 WL 112, 2:15-22.) The parties subsequently signed a three-page amendment to the agreement that changed the closing date and increased the earnest money to five million dollars. Section 42.001(1) "plainly requires evidence that a defendant acted with a culpable state of mind," and the defendant's conduct "at a minimum, must exceed mere recklessness or gross negligence." 120. . ECF No. 1. ECF No. Accordingly, the Court enters such a sanction and closes the case. The schedule is set as follows: Appellant Winecup Gamble, Inc. And courts are hesitant to appoint a neutral expert when parties have retained their own qualified experts. See Land Baron Ivs., Inc. v. Bonnie Springs Family LP, 356 P.3d 511, 522 (Nev. 2015) (affirming an award of punitive damages for a nuisance counterclaim); Parkinson v. Winniman, 344 P.2d 677, 678 (Nev. 1959) (holding that an award of exemplary damages was proper upon proof of intentional trespass). WINECUP GAMBLE, INC., Plaintiff-Appellee, v. GORDON RANCH LP, Defendant-Appellant. The most relevant evidence for these determinations would again be Mr. Worden's lost ESI. Id. SEE ORDER FOR DETAILS. Id. ), The original terms of the agreement contained a comprehensive risk-of-loss provision. 149) is granted. (Id.) Id. The FRSA also includes an express preemption provision: "A State may adopt or continue in force a law, regulation, or order related to railroad safety or security until the Secretary of Transportation . Winecup opposes the motion arguing that whether the storm that caused the dam's failure was a historic storm event is a question for the jury and therefore, Winecup should be permitted to offer evidence of the historic storm. Continued monitoring of the seepage area is noted in both the 2012 and 2016 reports. Counsel are requested to contact the Circuit Mediator should circumstances develop that warrant settlement discussions while the appeal is pending. Union Pacific requests the Court bar Winecup from admitting a paragraph of an email from a Union Pacific employee discussing traffic incidents with a Nevada Department of Transportation employee. . Mason v. Fakhimi, 865 P.2d 333, 335 (Nev. 1993) (citing Haromy v. Sawyer, 654 P.2d 1022, 1023 (Nev. 1982). Under Federal Rule of Civil Procedure 26(b)(4)(D), a party may not discover "by interrogatories or deposition . 1:20-CV-00126 | 2020-09-29, U.S. District Courts | Personal Injury | IT IS FURTHER ORDERED that Union Pacific's twentieth motion in limine to permit Union Pacific witnesses to testify by video (ECF No. As part of the agreement, Defendant deposited a million dollars of earnest money in escrow. These facts are sufficient for the Court to draw an inference that Mr. Worden acted intentionally. Next, Union Pacific argues that two of Godwin's opinion related to Winecup's contributory negligence defense should be excluded: (1) Godwin opines that based on his experience in railroad construction and design, that it is industry standard that railroads throughout the country use culverts large enough to handle flows associated with a 100-year storm; and (2) Godwin opines that the culverts in place before the flood were not large enough to withstand a 50-year storm. 2:19-CV-00520 | 2019-07-23, U.S. District Courts | Personal Injury | Lindon disputes that he erred as to either point. Include Ninth Circuit case number in subject line. In its first motion, Union Pacific argues that Lindon is not qualified to opine on meteorology because he does not hold a degree or certification in the field and his opinion should be excluded because he did not reliably apply accepted methodology to sufficient facts. All foota. 160-4 at 6. Union Pacific motions the Court to bar Winecup from offering evidence of the Oroville Dam spillway failure and the weather and flood conditions that occurred in February 2017 in California and western Nevada. [20-16411] (AD) [Entered: 07/28/2020 06:44 PM], Docket(#3) MEDIATION ORDER FILED: By 08/11/2020, counsel to email Circuit Mediator regarding settlement potential. (Id. Winecup concedes that the Nevada Department of Water Resources classified the 23 Mile dam as a low hazard dam and the Dake dam as a significant hazard dam. Get free access to the complete judgment in Winecup Gamble, Inc. v. Ranch on CaseMine. 152) is granted in part and denied in part. Second, Winecup addresses Nevada Revised Statute 535.030, which it claims also cannot provide the basis for Union Pacific's negligence per se claim. ECF No. Once a prevailing party has been determined, that party should be allowed to request or move for an award of reasonable attorneys' fees, as such an award is available to the prevailing party under the plain terms of the agreement. Union Pacific motions the Court to prohibit Winecup from offering any expert witnesses, including expert testimony from Luke Opperman, the Nevada Department of Water Resources engineer who inspected both the 23 Mile Dam and the Dake Dam before and after the incident, because he was not disclosed as an expert and Winecup failed to provide a written report as required under Federal Rule of Civil Procedure 26(a)(2)(A)-(B). See ECF No. Stephanie Hoit Lee & David N. Finley, Federal Motions in Limine 1:1 (2018). The Judges overseeing this case are Robert C. Jones and Valerie P. Cooke. 111 at 16-17. Additionally, Union Pacific does not object to Winecup providing jurors with their own binders. Razavian testified that it was his opinion that the "destructive force" of the runoff associated with the "flood pulse" from the 23 Mile dam failure washed out the tracks. Accordingly, the late disclosure was harmless, and Lindon will be permitted to testify on the subject. ECF No. Finally, as an adjunct professor in Civil Engineering at the University of Utah, Lindon taught a graduate level course that included water management and hydrometeorology. IT IS FURTHER ORDERED that Winecup's fifth motion in limine to exclude evidence and argument related to an Emergency Action Plan for the Dake Dam (ECF No. Accordingly, Union Pacific's ninth motion in limine (ECF No. Gordon Ranch filed a motion for judgment on the pleadings; Winecup Gamble filed its motion for summary judgment. [12077160] (AF) [Entered: 04/16/2021 11:36 AM], (#5) MEDIATION CONFERENCE RESCHEDULED - DIAL-IN Assessment Conference, 04/14/2021, 9:30 a.m. Pacific Time (originally scheduled on 03/31/2021). However, as applied and in context, the terms of the parties' amended agreement are ambiguous on the point of whether the contract was intended to shift the risk-of-loss scheme. S.E.C. Margrave, 878 P.2d at 293; see Bielar v. Washoe Health Sys., Inc., 306 P.3d 360, 364 (Nev. 2013) ("[E]very word [in a contract] must be given effect if at all possible.") First, Winecup argues that a plain reading of the text of NAC 535.240 shows that the applicability of the statute is limited to approval for new construction, reconstruction, or alterations, but it does not apply to dams in existence before the statute went into effect that have not been modified or altered. 134) is DENIED without prejudice. ECF No. Lindon and Razavian are both experts in their fields but have come to differing conclusions on soil saturation. 122) is granted in part and denied in part. Make your practice more effective and efficient with Casetexts legal research suite. ECF No. Under Nevada law, a "jury may not apportion fault to non-parties, and evidence or argumentation directed to showing non-parties' comparative fault is therefore inadmissible." Motions in limine should not be used to resolve factual disputes or to weigh evidence, and evidence should not be excluded prior to trial unless the "evidence is clearly inadmissible on all potential grounds." Razavian's expert report concludes the following regarding the cause of track washouts: Rule 26 of the Federal Rules of Civil Procedure states that an expert must provide "a complete statement of all opinions the witness will express and the basis and reasons for them." (ECF No. Plaintiff had imposed an oral litigation hold that proved insufficient and a good deal of ESI went missing. Accordingly, Union Pacific's third motion in limine (ECF No. Union Pacific's thirteenth motion in limine to bar evidence or argument related to an "Act of God" defense (ECF No. 1. B at 2. Winecup argues that Union Pacific should only be permitted to recover the cost of replacing the culverts and embankments rather than the bridge "upgrade," and that it does not intend to argue whether culverts or bridges should have been built. 3:19-CV-00700 | 2019-11-20. Extremely limited rainfall, roughly 7 inches annually, makes . Winecup Gamble argues that Razavian did not offer an opinion on the cause of the washout at mile post 670.03 in his initial report, offering his opinion for the first time during his deposition. And the best part of all, documents in their CrowdSourced Library are FREE! Nonetheless, even if Mr. Worden deleted the emails immediately after receiving them, the facts show that he was still producing ESI regarding this case after the duty to preserve arose. Accordingly, the Court grants Union Pacific's eighteenth motion in limine as it relates to the cited email and denies it without prejudice as it relates to the subject as a whole. By continuing to use this website, you agree to UniCourts General Disclaimer, Terms of Service, 1985). Id. Transcript due 09/21/2020. . The electronic display system further allows the parties to show the electronic exhibit to the witness first, before it is published to the jurors, and the witness may make useful electronic marks on the exhibit, such as circling or pointing to relevant portions. ECF No. However, Union Pacific may present this evidence only in the secondary proceeding to determine the amount of punitive damages, should the case reach this proceeding. While this disclosure is technically untimely, it was harmless; therefore, the procedural failure does not provide a basis for exclusion under Rule 37. 135. Documentary footage of life and work on the Gamble division of the Winecup Gamble Ranch, Montello, Nevada. 3:21-CV-00226 | 2021-05-14, U.S. District Courts | Contract | Public Records Policy. REVERSED, VACATED, and . The Court finds that whether such evidence is relevant is best determined at trial. See Sagebrush, Ltd. v. Carson City, 660 P.2d 1013, 1015 (Nev. 1983) ("Whether a legislative enactment provides a standard of conduct in the particular situation presented by the plaintiff is a question of statutory interpretation and construction for the court. Union Pacific motions the Court to bar Winecup from offering evidence or argument that the Fish & Game allegedly requested that the Dake dam be preserved for the pike they had put in it. Public Records Policy. 107 Ex. Bard, Inc., Case No. Winecup opposes, arguing that the proposed instructions are improper standard of care instructions for a negligence case, the proposed list is biased in favor of Union Pacific, and if the Court is inclined to give such instructions, then it should also preliminarily instruct the jury as to all elements of negligence in a neutral and accurate manner. Under Federal Rule of Evidence 702, a witness may be qualified as an expert based on his or her knowledge, skill, experience, training, or education. ECF No. While ultimately whether to award punitive damages is a question for the jury, the district court must first make a "threshold determination that a defendant's conduct is subject to this form of civil punishment." 2004); see Mizzoni v. Allison, 2018 WL 3203623 at*5 (D. Nev. 2018) (citing to Zubulake). Appellant's optional reply brief is due 21 days after service of the answering brief. See FED. 250,000 ACRES DEEDED LAND WITH GRAZING RIGHTS ON OVER 1,000,000 ACRES. 111-7 43. A presumption that the lost information was unfavorable to Plaintiff or an adverse jury instruction would not sufficiently cure Defendant's prejudice. ECF No. On the one hand, if the spoliation prejudiced the moving party, then the Court may order measures no greater than necessary to cure the prejudice. Moreover, Opperman, Holt, and Quaglieri are all listed in the parties' joint pre-trial order as witnesses that both Union Pacific and Winecup may call, and both parties are well aware of the proposed testimony of each witness. Union Pacific's tenth motion in limine requesting that the Court instruct the jury before trial about certain laws that apply to Nevada dam owners (ECF No. Union Pacific argues that Winecup should be precluded from arguing before the jury that any of Nevada's dam statutes and regulationsNevada Revised Statutes ("NRS") 535.005 et seq. Accordingly, the Court denies Union Pacific's seventh motion in limine. ), Presently, Defendant moves for sanctions against Plaintiff alleging that Mr. Worden and Mr. Fireman, acting as Plaintiff's agents, spoliated the ESI. ECF No. Id. SEND MQ: Yes. ///. at 3. 176) is granted. ECF No. Under Federal Rule of Evidence 705, "[u]nless the court orders otherwise, an expert may state an opinionand give the reasons for itwithout first testifying to the underlying facts or data. 127. 111 & 112. Lindon used "data from the U.S. Geological Survey stream gages and Nation Weather Service stations to help form the model and calibrate the results." Accordingly, the Court grants in part and denies in part Union Pacific's twenty-first motion in limine to amend the pretrial order. As of December 2015, Federal Rule of Civil Procedure 37(e) provides the specificand onlybasis for sanctions for spoliation of ESI, which was substantially amended to accommodate advances in technology and provide uniformity among the circuits. 34 Ex. Winecup does not dispute that some of Nevada's dam statutes and regulations apply to its 23 Mile and Dake dams; however, it argues that a blanket ruling that it can't argue that any of these regulations or statutes do not apply is overbroad and contrary to a plain reading of many of the sections. Thitchener, 192 P.3d at 255. While questions regarding estimations of the percentage overflow that came from 23 Mile dam verses from the floodwater in the Loray Wash due to the storm, and whether the Loray Wash had overtopped its banks without the addition of floodwater from 23 Mile dam go to the issue of causation, those are ultimately for the jury to decide and are different questions from whether Razavian offered an opinion that floodwater from 23 Mile dam caused the washout. Co., 326 F. Supp. This statute, titled Construction, reconstruction or alteration of dam: Permit to appropriate water required; notice; approval of plans and specifications; inspection; exemptions; penalty, provides: Union Pacific further argues that Winecup "abandoned" the Dake dam which constitutes an "alteration" within the meaning of NRS 535.010 and required Winecup to submit a plan for approval, which it failed to do. 154-2 at 5. ECF No. Accordingly, Union Pacific's motion (ECF No. Union Pacific argues that Lindon is not a qualified expert in meteorology because he does not hold a degree or certificate in the field. ECF No. See ECF No. /// /// ///. 190. 175-1. The Court therefore denies Winecup's fifth motion in limine without prejudice and reserves ruling on such evidence until it can be adjudged in the context of trial. ECF No. 55.) ECF No. 80.) 1993) (internal quotation marks omitted), overruled on other grounds by United States v. Nordby, 225 F.3d 1053 (9th Cir. It was not until May 13, 2020, that Winecup disclosed in its supplemental expert disclosure that it intended to call Opperman, Holt, and Quaglieri as non-retained experts. 141-2 7-8. See Francis v. MSC Cruises, S.A., Case No. FED. 160. i. Godwin's a qualified expert in railroad rerouting, costs, and railroad construction and design. (#7) MEDIATION ORDER FILED: This case is RELEASED from the Mediation Program. They include Needle-and-Thread, Great Basin wild rye, Russian wild rye, Indian rice, crested wheat, bluebunch wheat, Sandberg blue, and bottlebrush squirrel tail. to simulate and re-create hydrologic process of watershed systems." ECF No. ECF No. At that time, the Court would expect participating attorneys to appear in-person, but it would again leave it to each party's counsel to determine which of its witnesses would appear by video or in-person. The briefing schedule previously set by the court remains in effect. (ECF No. Winecup concedes that an accepted methodology includes using topographical survey data to determine if it is possible for water to escape one drainage and enter another. Winecup opposes, arguing that Union Pacific cites no authority or foundation for the Court on which to make such a ruling. 640 were here. Ins. He has taken continuing education courses in hydro-meteorology, and has "operated the National Weather Service Station for Park City, Utah for the past 26 years, measuring and reporting temperatures, snowfall, snowpack and precipitation daily." CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993). The schedule is set as follows: Appellant Winecup Gamble, Inc. 89 16, 32, 50; ECF No. Moore-Brown v. City of North Las Vegas Police Dep't, Federal Rule of Civil Procedure 26(a)(2)(A), Federal Rule of Civil Procedure 26(a)(2)(C), Federal Rule of Civil Procedure 26(b)(4)(D), Rule 26 of the Federal Rules of Civil Procedure, Rule 705 of the Federal Rules of Evidence. Winecup argues that Lindon is qualified to opine on both meteorological and hydrological issues, and that Union Pacific's arguments do not go toward the admissibility of Lindon's opinions, but only the weight, and amount to nothing more than a "battle of the experts." 141-5 at 9-10, 12, 30-32; ECF No. 3:20-CV-00293 | 2020-05-18, U.S. District Courts | Contract | Winecup's late Supplemental Third Disclosure regarding Lindon's rebuttal opinion on the washout at mile post 670.03, while untimely, is harmless, and Lindon's opinions are admissible. A, 45:18-46:13.) [11770779] [20-16411] (Lundvall, Pat) [Entered: 07/29/2020 01:50 PM], (#3) MEDIATION ORDER FILED: By 08/11/2020, counsel to email Circuit Mediator regarding settlement potential. [12043650] [21-15415] (Peterson, William) [Entered: 03/16/2021 05:14 PM], Docket(#8) Streamlined request [7] by Appellant Winecup Gamble, Inc. to extend time to file the brief is approved. The Court agrees with Union Pacific that under Rule 26 of the Federal Rules of Civil Procedure, Winecup is prohibited from asking questions or offering evidence or argument about the plaintiff's consulting experts. While section 233.13 touches on drainage, it does not substantially subsume the subject matterthere is no specified standard for culvert size or what type of culvert should be used in this circumstance. 15. Union Pacific has twice amended its complaint (ECF Nos. 149) is GRANTED. Therefore, as a matter of law, the Court finds that section 2 of this statute cannot form the basis of a negligence per se claim and Winecup's motion is granted. Mar. winecup gamble ranch. Winecup motions the Court to exclude Union Pacific from arguing or presenting evidence that NAC 535.240 applies to the 23 Mile or Dake dams. The Honorable Fernando M. Olguin, United States District Judge for the Central District of California, sitting by designation. As part of its holding, the Ninth Circuit noted that that the Court may consider parol evidence to resolve ambiguities in contractual language under Nevada law. Union Pacific Railroad Company v. Winecup Ranch, LLC et al, Elko Broadband Ltd. v. Haidermota BNR, Lawyers and Counsel with Offices in Islamadad, Islamic Republic of Pakistan et al, Vincent G. Dimaggio v. Jacqueline L. Stoever. ECF No. Given these facts, a jury could reasonably find that a failure to complete safety measures as directed by the DWR over approximately 20 years constituted conscious disregard. [12043650] [21-15415] (Peterson, William) [Entered: 03/16/2021 05:14 PM], Docket(#1) DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. To submit pertinent confidential information directly to the Circuit Mediators, please use the following # link . The Court will address each argument in turn. Finally, because Winecup has not "admitted" the facts as presented by Union Pacific, the Court will not permit Union Pacific to add the information to the "undisputed facts" section of the pretrial order. ), After remand, the parties reinitiated discovery. Under Federal Rule of Civil Procedure 32(a)(8), the deposition from an earlier action "may be used in a later action involving the same subject matter between the same parties." "The decision of whether to allow the jury to take notes is left entirely to the discretion of the trial court." United States v. Baker, 10 F.3d 1374, 1403 (9th Cir. (Id.). In its second motion, though Union Pacific concedes that Lindon is qualified to opine on hydrology, it argues that his opinions should be excluded because his methodology and data were flawed. Id. The Court notes that it is open to hearing any other mutually agreeable alternative to the options suggested by the Court as this case proceeds. 120-2 at 5 ("HEC-HMS and HEC-RAS are probably the most extensively applied water-related modeling systems in the world. In Nevada, "[r]etroactivity is not favored," and courts generally interpret regulations to "only operate prospectively unless an intent to apply them retroactively is clearly manifested." Union Pacific motions the Court to exclude both Winecup's contributory negligence defense and Godwin's expert opinions that relate to this defense. See Tennison v. Circus Circus Enterprises, Inc., 244 F.3d 684, 690 (9th Cir. 123) is denied. (ECF No. Winecup Gamble Ranch Global Presence. iv. ECF No. 1980)). Shot over two years on the spring wagon. Union Pacific certified that it had met and conferred with Winecup prior to filing this motion in limine, as required by Local Rule LR II 16-3(a); however, Winecup does not oppose this request. unless the failure was substantially justified or is harmless." Given the nature of the lost ESI, the Court finds that it must give the harshest sanction of a case dispositive ruling. Union Pacific argues that good cause appears to permit videoconferencing under Federal Rule of Civil Procedure 43(a) due to the COVID-19 pandemic. Union Pacific's first amended complaint no longer included defendant Winecup Ranch, LLC, and its second amended complaint no longer included Paul Fireman. SEND MQ: Yes. The Court reiterates that the District Court has temporarily suspended all jury trials until further notice. However, the court may exclude otherwise relevant evidence "if its probative value is substantially outweighed by the danger of" unfair prejudice. Under the provision, Plaintiff bore the risk of loss until closing, where, in the case of casualty loss before closing, Defendant had the option to take the property as-is with insurance proceeds or to reject the property and take back its earnest money. While Union Pacific argues that these witnesses may not be qualified to offer opinion testimony, the Court reserves ruling on specific testimony for trial. Casetext, Inc. and Casetext are not a law firm and do not provide legal advice. The court's role is to "screen the jury from unreliable nonsense opinions, . 123) is DENIED. [11785954] (BLS) [Entered: 08/12/2020 08:52 AM], Docket(#6) The Mediation Questionnaire for this case was filed on 07/29/2020. R. Civ. /// ///. In Winecup Gamble, Inc. v. Gordon Ranch, LP, 2021 WL 2481861 (9 th Cir. If the jury finds in the affirmative, a subsequent proceeding will occur during which the parties will be permitted to present evidence of the financial condition of the defendant and the jury could award punitive damages. It argues that alone is sufficient grounds for showing that it performed reasonable steps to preserve the ESIit is not. This communication will be kept confidential, if requested, and should not be filed with the court. The Largest that could be expected from the most severe combination of critical meteorological and hydrological conditions that are reasonably possible for the region in which the dam is located; and 2. The Court finds that because this case has not been set for trial, this amendment to the pretrial order will not inconvenience the Court and does not prejudice either party. In the event of a dam failure, a significant hazard dam carries a "(1) reasonable probability of causing loss of life; or (2) high probability of causing extensive economic loss or disruption in a lifeline;" and a low hazard dam carries a "(1) Very low probability of causing a loss of human life; and (2) Reasonable probability of causing little, if any, economic loss or disruption in a lifeline." 89. Winecup argues this would apply to all of Union Pacific's witnesses. If you do not agree with these terms, then do not use our website and/or services. To succeed on this motion, the moving party must prove the following three elements: Defendant also moves for sanctions under the Court's inherent authority. ECF No. IT IS FURTHER ORDERED that Winecup's sixth motion in limine to exclude evidence and argument related to the financial condition of Winecup, Paul Fireman, and the sale of Winecup Gamble Ranch in 2019 (ECF No.

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